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NAVY | DRB | 2004 Marine | MD04-00758
Original file (MD04-00758.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-PFC, USMCR
Docket No. MD04-00758

Applicant’s Request
The application for discharge review was received on 20040406. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I need the enclosed DD Form 214 document, Line 24 and 28 to be changed. Line 24 needs to be changed from General (Under Honorable Conditions) to Honorable discharge. Line 28 needs to be changed to protect my right to privacy. No misconduct occurred while I was on active duty. Present and future employers may request for my discharge (DD Form 214) to validate time worked/served.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member 1 and 4)
DD Form 149

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 010319               Date of Discharge: 020114

 Length of Service (years, months, days):

         Active: 00 09 19
         Inactive: 00 00 07

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 12                        AFQT: 67
Highest Rank: PFC                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: None                 Conduct: None

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207.

 Chronological Listing of Significant Service Events :

010326:  Applicant commences initial active duty training.

 010830:  Letter from Applicant to CO, SOI admitting to being a homosexual.

010913:  Fact Finding Inquiry into the disclosure of homosexuality by the Applicant submitted.

010924:  Counseled for deficiencies in performance and conduct. [Disclosure of your homosexual tendencies hinders your ability to continue to train.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
011024:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of homosexual conduct as evidenced by his self-admission to being a homosexual.
011024:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
011024:  Commanding Officer recommended discharge under honorable conditions (general) by reason of homosexual conduct due to his self-admittance that he was homosexual and had engaged in homosexual acts.

011213:  GCMCA [CG, MCB, CAMPEN, CA] directed the Applicant's discharge under honorable conditions (general) by reason of homosexual conduct - admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020114 under honorable conditions (general) for homosexual conduct - admission (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

Issue 1. The Applicant voluntarily admitted to being a homosexual. His admission was substantiated by a fact finding inquiry. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief to the narrative reason for separation is therefore denied.

 When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by conduct that posed a detriment to the good order and discipline of his unit and his lack of desire to fulfill his enlistment contract . An upgrade to honorable is inappropriate. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.










Pertinent Regulation/Law (at time of discharge)

 A. The Marine Corps Separation and Retirement Manual (MCO P1900.16F), effective
01 Sep 2001 until Present, Paragraph 6207, HOMOSEXUAL CONDUCT .

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, disobey a lawful order.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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